Legal blog by WARDS LAWYERS PC.

This employee returned from parental leave. When she did, the employer affirmed to her that she had to arrive at work at 8:30 a.m. Before her leave, the employee alleged, the employer had allowed her to come in later in the morning (due to childcare issues).

The issue is, if the employer had been flexible on her start time previously, particularly due to her representation that she had childcare responsibilities, is it wrong for the employer to require that she attend at the usual time thereafter, particularly when she is returning from parental leave?

Firstly, there was no written employment agreement – a strike against the employer.

Secondly, because there were no written terms, the case escalated into a ‘he-said, she-said’ dispute, which is always very costly to adjudicate in the Superior Court of Justice – win or lose.

The employee claimed in the litigation that the employer had: constructively dismissed her (by changing her fundamental terms of employ), violated her statutory employment rights and discriminated against her contrary to the Ontario Human Rights Code (based on family status discrimination).

The Court dismissed her claims.

The employer’s flexibility did not amount to changing the employment relationship, even if those were the facts of the case.

If anything, the Court perceived the employee to be the one attempting to unlawfully change the employment relationship, not the other way around.

Therefore, when employers are flexible periodically, the Court will recognize this and not allow the employee to take advantage of the employer doing so.

The date of the federal election is October 21, on which most employees are entitled to paid time off to vote [except only for employees who transport goods or people by land, water or air, and are employed outside of their polling divisions and time off to vote cannot reasonably be provided without interfering with the transportation service).

Any employee who is a Canadian citizen and eighteen years of age is rightfully entitled to take three, consecutive hours off on election day for the purpose of voting.

If the employee’s duties reasonably preclude that person from taking three, consecutive hours away to vote, the employer must give the employee adequate time off to meet the requirement of three, consecutive hours.

Generally, voting hours within the Eastern Time Zone are 9:30 a.m. to 9:30 p.m.

Employees’ pay cannot be reduced, nor can they be otherwise penalized, for taking this time off to vote, even if the employee is commission or piecework based. Rather, qualified employees must be paid for a full day’s work as if they had not been given time off to actually vote.

Employers who do not follow this statutory protection could be fined not more than $2,000 or be imprisoned for a term of not more than three months, or both.

Employers are also prohibited from interfering with these three, consecutive hours to vote – by intimidation, undue influence or other means. Employers who breach this prohibition are liable, on summary conviction, to a fine of not more than $20,000 or to imprisonment for a term of not more than one year, or both. If conviction is by indictment, the maximum fine and term of imprisonment increase to $50,000 and five years.

The Supreme Court has now decided that the police have no power to arrest a person who is acting lawfully, even if the justification would be to prevent a potential crime from being committed.

For example, if you were involved in a protest, but you were acting lawfully, the police have no authority to arrest you based on a perceived apprehension that you may breach the peace.

The Supreme Court unanimously affirmed that any such power of arrest would substantially interfere with the liberty and freedom of law-abiding individuals and would not be reasonably necessary for the discharge of police duties.

The Court indicated they could not think of any basis for or circumstance in which arresting a person who is acting lawfully in order to prevent, in this case, a breach of the peace, would be reasonably justified.

Sexual harassment in the workplace can justify an employee’s immediate and swift termination, for cause (i.e., no entitlement to any severance pay).

While all sexual harassment is, of course, serious, sexual harassment is judicially analyzed in a spectrum – the more serious the misconduct, the more likely it justifies termination for cause, rather than suspension, reprimand or lesser punishment.

For example, flirtatious or sexualized comments may be unwelcome and annoying, in addition to being entirely inappropriate in the workplace, but they may not escalate to point of justified abrupt termination for being grossly inappropriate, rather than another form of discipline, rehabilitation strategy or other alternative.

In this case, the texts by the male co-employee to his female counterpart initiated as fairly innocuous, or subtly sexualized, but they eventually escalated to more blatant and readily apparent sexualized behaviour, such as sending texts containing pictures of penises downloaded from the Internet. The female co-worker did not complain initially, trying her best to manage the difficult situation.

Ultimately, the male co-worker showed the female co-worker a picture of his own penis on his ‘phone.

That was it. The female co-worker complained to the employer. The employer fired the male employee, for cause (i.e., paid nothing for severance or pay in lieu of notice), after conducting an investigation.

The male employee grieved his termination, alleging it was wrongful and that he was entitled to severance, etc.

Notably, the male employee was a long-service employee with a very good disciplinary record.

The arbitrator held that the male co-worker had:

- engaged in a patter of escalating misconduct that was serious and grossly inappropriate in the workplace;
- had not accepted responsibility for his misconduct; and
- demonstrated strained, if any, remorse.

So, sexual harassment in the workplace is treated seriously and can support a termination, for cause.

Investigations by employers should be conducted for sexual harassment complaints, and conducted properly, to support the allegation of cause.

In this case, the escalating behaviour, culminating with showing his co-employee a picture of his own penis, was justifiable cause for immediate termination.